Torabi v. Washington Mutual Bank et al

Filing 27

ORDER Granting Defendant Chase Bank's Motions To Strike And To Dismiss (Re Docs. 23 , 24 ): The date to hear said motions, 1/30/2012, is vacated. This case is dismissed without prejudice. Signed by Judge John A. Houston on 1/25/2012. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SEPEHR TORABI,
Plaintiff,

v.

WASHINGTON MUTUAL BANK;
CHASE BANK, NA; CITIBANK NA as
trustee for WAMU 2004-AR9, WAMU
2004-AR9; and DOES 1 to 25;
Defendants.

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Civil No. 3:09-cv-2838-JAH (BLM)
ORDER GRANTING DEFENDANT
CHASE BANK’S MOTIONS TO
STRIKE AND TO DISMISS
[DKT NOS. 23, 24]

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On December 17, 2009, plaintiff Sepehr Torabi (“Plaintiff”) filed a complaint

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against defendants Washington Mutual Bank (“Washington Mutual”); JPMorgan Chase

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Bank, N.A. (erroneously sued as Chase Bank, N.A. and hereinafter referred to as “Chase

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Bank”); Citibank, N.A. as trustee for WAMU 2004-AR9; and WAMU 2004-AR9.1 (Dkt.

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No. 1.) Plaintiff alleged the following causes of action in his initial complaint: (1)

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violations of the Truth in Lending Act, (2) violations of the Federal Fair Debt Collection

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Practices Act, (3) violations of the Real Estate Settlement Procedures Act, (4) to set aside

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and vacate a trustee sale, (5) unjust enrichment, (6) promissory estoppel, (7) an

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accounting, (8) breach of implied warranties in violation of the California Consumers

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Legal Remedies Act, (9) disgorgement pursuant to the California Unfair Competition Law,

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The factual background of this foreclosure case may be found in this Court’s
Amended Order Granting Defendant Chase Bank’s Motion to Dismiss, (Dkt. No. 20).
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(10) fraud in violation of the California Unfair Competition Law, (11) an additional claim

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of fraud in violation of the California Unfair Competition Law, (12) negligence, and (13)

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declaratory relief. (Id.)

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On October 11, 2011, this Court granted Chase Bank’s Motion to Dismiss

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Plaintiff’s initial complaint, (Dkt. No. 20), and granted Plaintiff’s request for leave to file

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an amended complaint, which Plaintiff did on November 16, 2011, (Dkt. No. 21).

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Plaintiff’s First Amended Complaint (“FAC”) alleges the following causes of action against

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Washington Mutual and Chase Bank: (1) to set aside and vacate trustee sale under

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California Civil Code section 3412, (2) no contract, (3) promissory estoppel, and (4) quiet

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title.

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On December 5, 2011, Chase Bank filed a motion to strike the second and fourth

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causes of action in Plaintiff’s FAC, (Dkt. No. 23), along with a motion to dismiss

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Plaintiff’s FAC pursuant to Federal Rule of Civil Procedure 12(b)(6), (Dkt. No. 24). This

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Court set January 30, 2012, to hear Chase Bank’s motions to strike and dismiss. To date,

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the Court has received no response to Chase Bank’s motions to strike and dismiss from

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Plaintiff. Chase Bank filed a Notice of Non-opposition on January 23, 2012. (Dkt. No.

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26.) Accordingly, the Court GRANTS Chase Bank’s motions to strike and to dismiss as

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unopposed.

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The Ninth Circuit has held that a district court may properly grant a motion as

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unopposed pursuant to a local rule where the local rule permits, but does not require, the

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granting of a motion for failure to respond. See Ghazali v. Moran, 46 F.3d 52, 53 (9th

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Cir. 1995) (per curiam) (affirming dismissal for failure to timely file opposition to papers).

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Civil Local Rule 7.1.f.3.c expressly provides that “[i]f an opposing party fails to file the

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papers in the manner required by Local Rule 7.1.e.2, that failure may constitute a consent

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to the granting of that motion or other request for ruling by the court.”

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Prior to granting an unopposed motion for dismissal, the Court must weigh the

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following factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the

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court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the
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public policy favoring disposition of cases on their merits; and (5) the availability of less

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drastic sanctions.” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421,

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1423 (9th Cir. 1986)). The Ninth Circuit has recognized that the first and fourth factors

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cut in opposite directions. See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir.

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1999) (first factor always weighs in favor of dismissal); Hernandez v. El Monte, 138 F.3d

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393, 401 (9th Cir. 1998) (fourth factor counsels against dismissal).

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First, because Chase Bank’s motions were set to be heard on January 30, 2012,

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Plaintiff’s oppositions to those motions were due on January 13, 2012, because January

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16, 2012, was a legal holiday. See CivLR 7.1.e.2; Fed. R. Civ. Proc. 6.

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With regard to the Ghazali factors, the Court will address only the second, third,

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and fifth factors, as the first and fourth factors cut in opposite directions. The Court finds

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the second factor weighs in favor of dismissal, as the date set to hear Chase Bank’s

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motions is less than a week away, and the Court has received no response to Chase Bank’s

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motions. In addition to vacating the hearing date, then, the Court finds it appropriate to

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grant Chase Bank’s motions rather than allow them to remain unopposed on the Docket

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for an indefinite period of time. The Court finds that granting Chase Bank’s motions will

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not prejudice Chase Bank, as this Order provides the relief Chase Bank seeks in its

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motions to strike and to dismiss. Lastly, with respect to whether less drastic measures

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have been considered, the Court will dismiss Plaintiff’s FAC without prejudice. Thus, this

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Court finds the factors weigh in favor of granting Chase Bank’s unopposed motions to

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strike and dismiss. Accordingly, IT IS HEREBY ORDERED that Chase Bank’s Motion

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to Strike, (Dkt. No. 23), and Motion to Dismiss, (Dkt. No. 24), are GRANTED; the date

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said to hear said motions, January 30, 2012, is VACATED; and this case is DISMISSED

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without prejudice.

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Dated: January 25, 2012

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JOHN A. HOUSTON
United States District Judge

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